AMENDED AND RESTATED WARRANT TO PURCHASE COMMON STOCK OF FINISAR CORPORATION VOID AFTER JANUARY 31, 2013
Exhibit 99.3
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD, OFFERED FOR SALE, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION THEREFROM. THIS WARRANT HAS BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE.
VOID AFTER JANUARY 31, 2013
This Amended and Restated Warrant (this “Warrant”) was originally issued to [Employee] or his
registered assigns (the “Employee”) by Optium Corporation, a Delaware corporation (“Optium”) on May
1, 2003 (the “Warrant Issue Date”), and was assumed by Finisar Corporation, a Delaware Corporation
(hereinafter referred to as “Finisar” or the “Company”) pursuant to that certain Agreement and Plan
of Merger by and among Finisar, Fig Combination Corporation , a Delaware corporation and a
wholly-owned subsidiary of Finisar, and Optium dated May 15, 2008. This Warrant was issued to the
Employee in connection with his employment by Optium.
1. NUMBER OF SHARES SUBJECT TO WARRANT; EXERCISE PRICE. Subject to the terms and conditions
hereinafter set forth, the Employee is entitled, upon surrender of this Warrant at the principal
office of the Company, to purchase from the Company [Number of Shares] shares (the “Shares”) of
Common Stock, par value $0.001 per share (the “Common Stock”), at a purchase price of $0.10 per
share (as may be adjusted herein, the “Exercise Price”).
2. EXERCISE PERIOD. Except as otherwise provided for herein, this Warrant shall be
exercisable, in whole or in part, at any time prior to 5:00 p.m. eastern time on the tenth (10th)
anniversary of the Warrant Issue Date (the “Warrant Termination Date”); PROVIDED, that if the
employment by the Company of the Employee is terminated for any reason or reasons prior to this
Warrant becoming exercisable, then this Warrant shall expire without ever becoming exercisable;
and, PROVIDED FURTHER, that if the employment by the Company of the Employee is terminated for any
reason or reasons after this Warrant first becomes exercisable, then this Warrant shall expire and
no longer be exercisable on the earlier of: the Warrant Termination Date or (ii) the date that is
ninety (90) days following the date of such termination.
3. NOTICE OF SALE. The Company shall provide written notice to the Employee not less than
thirty (30) days prior to the consummation of a Change in Control. For purposes of this Warrant, a
“Change of Control” shall mean either of the following:
(a) any transaction or series of transactions pursuant to which the Company sells, transfers,
leases, exchanges or disposes of substantially all (i.e., at least eighty-five percent (85%)) of
its assets for cash or property, or for a combination of cash and property, or for other
consideration; or
(b) any transaction pursuant to which persons who are not current shareholders of the Company
acquire by merger, consolidation, reorganization, division or other business combination or
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transaction, or by a purchase of an interest in the Company, an interest in the Company so
that after such transaction, the shareholders of the Company immediately prior to such transaction
no longer have a controlling (i.e., 50% or more) voting interest in the Company.
However, notwithstanding the foregoing, in no event shall an initial public offering of the
Company’s common stock constitute a Change of Control.
4. METHOD OF EXERCISE. While this Warrant remains outstanding and exercisable in accordance
with SECTION 2 hereof, the purchase rights hereby represented may be exercised in whole but not in
part, at the election of the Employee, by the tender of the Notice of Exercise in substantially the
form attached hereto as EXHIBIT A and the surrender of this Warrant at the principal office of the
Company and by the payment to the Company in cash, by check, cancellation of indebtedness, shares
of Common Stock that have been held by the Employee for at least six (6) months (or shares
previously issued upon conversion thereof) or other form of payment acceptable to the Company, of
an amount equal to the then applicable Exercise Price multiplied by the number of Shares then being
purchased. For purposes of this SECTION 4, the fair market value of a share of Common Stock (or
shares previously issued upon conversion thereof) as of a particular date shall be determined by
the Company’s Board of Directors in its reasonable discretion; PROVIDED that if such shares
issuable upon exercise of this Warrant are traded on a national securities exchange or admitted to
quotation on the National Association of Securities Dealers Automated Quotation System, the fair
market value on any given date shall be the average of the closing sale prices on such exchange or
system of such shares issuable upon exercise of this Warrant for the 20 trading days preceding such
date.
5. CERTIFICATES FOR SHARES. Upon the exercise of the purchase rights evidenced by this
Warrant, one or more certificates for the number of Shares so purchased shall be issued as soon as
practicable thereafter (with appropriate restrictive legends, as applicable).
6. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number of and kind of securities
purchasable upon exercise of this Warrant and the Exercise Price shall be subject to adjustment
from time to time as follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the Company shall at any time prior to
the exercise or expiration of this Warrant subdivide its shares of Common Stock (or any successor
security as provided for in SECTION 6(b)), by split-up or otherwise, or combine its shares of
Common Stock (or any successor security as provided for in SECTION 6(b)), or issue additional
Common Stock as a dividend with respect to any of its shares of Common Stock (or any successor
security as provided for in SECTION 6(b)), the number of Shares issuable on the exercise of this
Warrant shall forthwith be proportionately increased in the case of a subdivision or stock
dividend, or proportionately decreased in the case of a combination. Appropriate adjustments shall
also be made to the Exercise Price, provided that the aggregate exercise price payable hereunder
for the total number of Shares purchasable under this Warrant (as adjusted) shall remain the same.
Any adjustment under this SECTION 6(a) shall become effective at the close of business on the date
the subdivision or combination becomes effective, or as of the record date of such dividend, or in
the event that no record date is fixed, upon the making of such dividend.
(b) RECLASSIFICATION, REORGANIZATION AND CONSOLIDATION. In the event of any corporate
reclassification, capital reorganization, consolidation, spin-off or change in the shares of Common
Stock (other than as a result of a subdivision, combination, or dividend provided for in SECTION
6(a) above), then, as a condition of such event, lawful provision shall be made, and duly executed
documents evidencing the same from the Company or its successor shall be delivered to the Employee,
so that the Employee shall have the right at any time prior to the expiration of this Warrant to
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purchase, at a total price equal to that payable upon the exercise of this Warrant, the kind
and amount of shares of stock and/or other securities and property receivable in connection with
such event by a Employee of the same number of shares for which this Warrant could have been
exercised immediately prior to such event. In any such case appropriate provisions shall be made
with respect to the rights and interest of the Employee so that the provisions hereof shall
thereafter be applicable with respect to any shares of stock or other securities and property
deliverable upon exercise hereof, and appropriate adjustments shall be made to the Exercise Price,
provided that the aggregate exercise price payable hereunder for the total number of Shares
purchasable under this Warrant (as adjusted) shall remain the same.
(c) NOTICE OF ADJUSTMENT. When any adjustment is required to be made to the Exercise Price or
in the number or kind of Shares purchasable upon exercise of the Warrant, the Company shall
promptly notify the Employee of such event and of the adjusted Exercise Price or number of Shares
or other securities or property thereafter purchasable upon exercise of this Warrant.
7. ASSUMPTION OF WARRANT. If at any time while this Warrant, or any portion thereof, is
outstanding and unexpired there shall be an acquisition of the Company by another entity by means
of a merger, reorganization or consolidation of the Company or any other similar transaction, then,
as a part of such acquisition, lawful provision shall be made so that the Employee shall thereafter
be entitled to receive upon exercise of this Warrant, during the period specified herein and upon
payment of the aggregate Exercise Price then in effect, the number of shares of stock or other
securities or property of the successor corporation resulting from such acquisition which the
Employee would have been entitled to receive in such acquisition if this Warrant had been exercised
immediately before such acquisition.
8. NO FRACTIONAL SHARES OR SCRIP. No fractional Shares or scrip representing fractional Shares
shall be issued upon the exercise of this Warrant, but in lieu of such fractional Shares the
Company shall make a cash payment therefor on the basis of the fair market value determined in
accordance with SECTION 4.
9. NO SHAREHOLDER RIGHTS. Prior to exercise of this Warrant, the Employee shall not be
entitled to any rights of a shareholder with respect to the Shares, including (without limitation)
the right to vote such Shares, receive dividends or other distributions thereon, exercise
preemptive rights or be notified of shareholder meetings, and such Employee shall not be entitled
to any notice or other communication concerning the business or affairs of the Company. However,
nothing in this SECTION 9 shall limit the right of the Employee to be provided the notices required
under this Warrant.
10. COMPLIANCE WITH SECURITIES ACT; TRANSFERABILITY OF WARRANT OR SHARES.
(a) COMPLIANCE WITH SECURITIES ACT. The Employee, by acceptance hereof, agrees that this
Warrant, and the Shares issuable upon exercise of this Warrant, are being acquired for investment
and that such Employee will not offer, sell or otherwise dispose of this Warrant, or any Shares
issuable upon exercise of this Warrant, except under circumstances which will not result in a
violation of the Securities Act, or any applicable state securities laws. This Warrant and all
Shares issued upon exercise of this Warrant (unless registered under the Securities Act and any
applicable state securities laws) shall be stamped or imprinted with a legend in substantially the
following form:
| “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAW AND MAY NOT BE SOLD, OFFERED FOR SALE, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED |
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| EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION THEREFROM, AND, IF REQUESTED BY THE COMPANY, THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THAT EFFECT. THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE.” |
(b) TRANSFERABILITY. Subject to compliance with applicable federal and state securities laws,
the Shares issuable upon exercise of this Warrant (but not this Warrant) are transferable in whole
or in part by the Employee to any person or entity upon written notice to the Company.
11. INVESTMENT STATUS. The Employee represents that he or she is an “accredited investor”
within the meaning of Regulation D under the Securities Act, as presently in effect.
12. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant shall inure to the
benefit of, and be binding upon, the Company and the holders hereof and their respective successors
and assigns.
13. AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended and the observance of any
term of this Warrant may be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the Company and the Employee.
14. NOTICES. All notices required under this Warrant shall be deemed to have been given or
made for all purposes (i) upon personal delivery, (ii) upon confirmation receipt that the
communication was successfully sent to the applicable number if sent by facsimile, (iii) one day
after being sent, when sent by professional overnight courier service, or (iv) five days after
posting when sent by registered or certified mail. Notices to the Company shall be sent to the
address of the Company set forth below (or at such other place as the Company shall notify the
Employee hereof in writing) and notices to the Employee shall be sent to the address of the
Employee set forth below (or at such other place as the Employee shall notify the Company hereof in
writing):
To the Company:
To the Employee:
[Employee]
Address 1
Address 2
Address 1
Address 2
15. CAPTIONS. The section and subsection headings of this Warrant are inserted for convenience
only and shall not constitute a part of this Warrant in construing or interpreting any provision
hereof.
16. GOVERNING LAW. This Warrant shall be governed by the laws of the State of Delaware,
without regard to the choice or conflict of laws principles thereof.
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IN WITNESS WHEREOF, the undersigned have caused this Warrant to be duly executed as of the
date first set forth above.
COMPANY
FINISAR CORPORATION
By: |
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Name:
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Title:
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EMPLOYEE
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EXHIBIT A
NOTICE OF EXERCISE
To: Finisar Corporation
The undersigned hereby elects to:
Purchase Shares (as defined in the attached Warrant) of Finisar Corporation,
pursuant to the terms of the attached Warrant and payment of the Exercise Price per Share required
under such Warrant accompanies this notice.
The undersigned hereby represents and warrants that the undersigned is acquiring such shares
for its own account for investment purposes only, and not for resale or with a view to distribution
of such shares or any part thereof.
Date:
WARRANT HOLDER:
By: |
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Name:
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Address:
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Name in which shares should be registered:
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